Amalgamated Food Employees Union, Local 590 v. Logan Valley Plaza, Inc./Dissent Black

Mr. Justice BLACK, dissenting.

While I generally accept the factual background of this case presented in the Court's opinion, I think it is important to focus on just where this picketing which was enjoined by the state courts was actually taking place. The following extract is taken from the trial court's 'Findings of Fact':

'(7) * *  *

'(a) small groups of men and women wearing placards * *  *      walked back and forth in front of the Weis supermarket, more      particularly in the pick-up zone adjacent to the covered      porch (emphasis added);

'(b) occasional picketing as above described has taken place     on the covered porch itself (emphasis added)';

Respondent Weis Markets, Inc., the owner-occupant of the supermarket here being picketed, owns the real property on which it constructed its store, porch, and parcel pickup zone. Respondent Logan Valley Plaza, Inc., owns the other property in the shopping center, including the large area which has been paved and marked off as a general parking lot for customers of the shopping center.

Anyone familiar with the operations of a modern-day supermarket knows the importance of the so-called 'pick-up zone' an area where the frequently numerous bags of groceries bought in the store can be loaded conveniently into the customers' cars. The phenomenon of the supermarket combined with widespread ownership of automobiles and refrigeration facilities has made the purchase of large quantities of groceries on a single shopping trip a common occurrence in this country. And in line with this trend the stores have had to furnish adequate loading areas and facilities including in many instances, such as here for example, extra employees to assist in loading customers' cars. Respondent Weis' parcel pickup zone is fairly typical of the type of loading area that has been provided: it is located alongside the front of the store and is 4 to 5 feet wide, 30 to 40 feet in length, and is market off with bold double yellow lines; the words 'Parcel Pick-Up' are printed in large letters in the zone. Testimony at trial showed that this pickup area was used 'strictly for customers to come and enter to pick up their parcels which they had purchased. * *  * They drive into this particular area, and there the groceries are loaded into the cars by (Weis employees) on *  *  * pick-up duty.'

It seems clear to me, in light of the customary way that supermarkets now must operate, that pickup zones are as much a part of these stores as the inside counters where customers select their goods or the check-out and bagging sections where the goods are paid for. I cannot conceive how such a pickup zone, even by the wildest stretching of Marsh v. State of Alabama, 326 U.S. 501, 66 S.Ct 276, 90 L.Ed. 265, could ever be considered dedicated to the public or to pickets. The very first section of the injunction issued by the trial court in this case recognizes this fact and is aimed only at protecting this clearly private property from trespass by the pickets. Thus the order of the court separately enjoins petitioners from:

'(a) Picketing and trespassing upon the private property of     the plaintiff Weis Markets, Inc., Store No. 40, located at      Logan Valley Mall, Altoona, Pennsylvania, including as such      private property the storeroom, porch and parcel pick-up      area.'

While there is language in the majority opinion which indicates that the state courts may still regulate picketing on respondent Weis' private property, this is not sufficient. I think that this Court should declare unequivocally that Section (a) of the lower court's injunction is valid under the First Amendment and that petitioners cannot, under the guise of exercising First Amendment rights, trespass on respondent Weis' private property for the purpose of picketing. It would be just as sensible for this Court to allow the pickets to stand on the check-out counters, thus interfering with customers who wish to pay for their goods, as it is to approve picketing in the pickup zone which interferes with customers' loading of their cars. At the very least, this wholly severable part of the injunction aimed at the pickup zone should be affirmed by the Court as valid under the First Amendment. And this is in fact the really important part of the injunction since, as the Court's opinion admits, '(t)he picketing was carried out almost entirely in the parcel pickup area and that portion of the parking lot immediately adjacent thereto.'

I would go further, however, and hold that the entire injunction is valid. With the exception of the Weis property mentioned above, the land on which this shopping center (composed of only two stores at the time of trial and approximately 17 now) is located is owned by respondent Logan Valley Plaza, Inc. Logan has improved its property by putting shops and parking spaces thereon for the use of business customers. Now petitioners contend that they can come onto Logan's property for the purpose of picketing and refuse to leave when asked, and that Logan cannot use state trespass laws to keep them out. The majority of this Court affirms petitioners' contentions. But I cannot accept them, for I believe that, whether this Court likes it or not, the Constitution recognizes and supports the concept of private ownership of property. The Fifth Amendment provides that '(n)o person shall * *  * be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.' This means to me that there is no right to picket on the private premises of another to try to convert the owner or others to the views of the pickets. It also means, I think, that if this Court is going to arrogate to itself the power to act as the Government's agent to take a part of Weis' property to give to the pickets for their use, the Court should also award Weis just compensation for the property taken.

In affirming petitioners' contentions the majority opinion relies on Marsh v. State of Alabama, supra, and holds that respondents' property has been transformed to some type of public property. But Marsh was never intended to apply to this kind of situation. Marsh dealt with the very special situation of a company-owned town, complete with streets, alleys sewers, stores, residences, and everything else that goes to make a town. The particular company town involved was Chickasaw, Alabama, which, as we stated in the opinion, except for the fact that it 'is owned by the Gulf Shipbuilding Corporation * *  * has all the characteristics of any other American town. The property consists of residential buildings, streets, a system of sewers, a sewage disposal plant and a 'business block' on which business places are situated.' 326 U.S., at 502, 66 S.Ct. at 277. Again toward the end of the opinion we emphasized that 'the town of Chickasaw does not function differently from any other town.' 326 U.S., at 508, 66 S.Ct. at 279. I think it is fair to say that the basis on which the Marsh decision rested was that the property involved encompassed an area that for all practical purposes had been turned into a town; the area had all the attributes of a town and was exactly like any other town in Alabama. I can find very little resemblance between the shopping center involved in this case and Chickasaw, Alabama. There are no homes, there is no sewage disposal plant, there is not even a post office on this private property which the Court now considers the equivalent of a 'town.' Indeed, at the time this injunction was issued, there were only two stores on the property. Now there are supposed to be about 17, but they are all conceded to be 'commercial establishments.' The remainder of the property in the center has been laid out as a large parking lot with individually marked parking spaces provided for business customers. All I can say is that this sounds like a very strange 'town' to me.

The majority opinion recognizes the problem with trying to draw too close an analogy to Marsh, but faces a dilemma in that Marsh is the only possible authority for treating admittedly privately owned property the way the majority does. Thus the majority opinion concedes that 'the respondents here do not own the surrounding residential property and do not provide municipal services therefor.' But that is not crucial, according to the majority, since the petitioner in Marsh was arrested in the business district of Chickasaw. The majority opinion then concludes that since the appellant in Marsh was given access to the business district of a company town, the petitioners in this case should be given access to the shopping center which was functioning as a business district. But I respectfully suggest that this reasoning completely misreads Marsh and begs the question. The question is, Under what circumstances can private property be treated as though it were public? The answer that Marsh gives is when that property has taken on all the attributes of a town, i.e., 'residential buildings, streets, a system of sewers, a sewage disposal plant and a 'business block' on which business places are situated.' 326 U.S., at 502, 66 S.Ct. at 277. I can find nothing in Marsh which indicates that if one of these features is present, e.g., a business district, this is sufficient for the Court to confiscate a part of an owner's private property and give its use to people who want to picket on it.

In allowing the trespass here, the majority opinion indicates that Weis and Logan invited the public to the shopping center's parking lot. This statement is contrary to common sense. Of course there was an implicit invitation for customers of the adjacent stores to come and use the marked off places for cars. But the whole public was no more wanted there than they would be invited to park free at a pay parking lot. Is a store owner or are several owners together less entitled to have a parking lot set aside for customers than other property owners? To hold that store owners are compelled by law to supply picketing areas for pickets to drive store customers away is to create a court-made law wholly disregarding the constitutional basis on which private ownership of property rests in this country. And of course picketing, that is patrolling, is not free speech and not protected as such. Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 69 S.Ct. 684, 93 L.Ed. 834; Hughes v. Superior Court of State of California, in and for Contra Costa County, 339 U.S. 460, 70 S.Ct. 718, 94 L.Ed. 985. These pickets do have a constitutional right to speak about Weis' refusal to hire union labor, but they do not have a constitutional right to compel Weis to furnish them a place to do so on its property. Cox v. State of Louisiana, 379 U.S. 559, 85 S.Ct. 476, 13 L.Ed.2d 487; Adderley v. State of Florida, 385 U.S. 39, 87 S.Ct. 242, 17 L.Ed.2d 149; Cameron v. Johnson, 390 U.S. 611, 88 S.Ct. 1335, 20 L.Ed.2d 182.

For these reasons I respectfully dissent.